Held: In the
1995 WCA, section 39-71-741 provides the only statutory authority for
lump summing a settlement. The section does not grant the WCC authority
to order a lump-sum payment of an impairment award, discounted or undiscounted,
to a permanently totally disabled claimant.

Topics:

Constitutions, Statutes,
Regulations and Rules: Montana Code: 39-71-741, MCA (1995). In the
1995 WCA, section 39-71-741, MCA, provides the only statutory authority
for lump summing a settlement. The section does not grant the WCC authority
to order a lump-sum payment of an impairment award, discounted or undiscounted,
to a permanently totally disabled claimant.

Benefits: Impairment
Awards. In the 1995 WCA, section 39-71-741, MCA, provides the only
statutory authority for lump summing a settlement. The section does
not grant the WCC authority to order a lump-sum payment of an impairment
award, discounted or undiscounted, to a permanently totally disabled
claimant.

Impairment: Generally.
In the 1995 WCA, section 39-71-741, MCA, provides the only statutory
authority for lump summing a settlement. The section does not grant
the WCC authority to order a lump-sum payment of an impairment award,
discounted or undiscounted, to a permanently totally disabled claimant.

Settlements: Lump Sum.
In the 1995 WCA, section 39-71-741, MCA, provides the only statutory
authority for lump summing a settlement. The section does not grant
the WCC authority to order a lump-sum payment of an impairment award,
discounted or undiscounted, to a permanently totally disabled claimant.

¶1 The sole issue as presented
by the parties in this case is whether a lump-sum payment of an impairment
award under the 1995 version of the Workers' Compensation Act may be discounted
to present value.(1) The matter is one
of statutory interpretation and is submitted on briefs.

Procedural History

¶2 This is the second case
brought by claimant, Gerald Sharp. The first case resulted in a judgment
finding him permanently totally disabled but authorizing the insurer to
credit previously paid permanent partial disability benefits against its
liability for permanent total disability benefits. Sharp v. Montana
Municipal Ins. Authority, 1999 MTWCC 32. Subsequent to the judgment
the insurer paid benefits as ordered, taking its credit for the previously
paid partial disability benefits. However, it has since agreed to pay
a "15 percent impairment award in a lump sum, subject to a discount to
present value." (Respondent's Brief in Support of Present Value Reduction
at 2.) Claimant wants the full 15 percent, undiscounted.

Discussion

¶3 The claimant was injured
on May 22, 1997, hence his entitlement to benefits is governed by the
1995 version of the Workers' Compensation Act. Buckman v. Montana
Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).

(1) If an injured
worker suffers a permanent partial disability and is no longer
entitled to temporary total or permanent total disability benefits,
the worker is entitled to a permanent partial disability award if that
worker:

(a) has an actual wage loss
as a result of the injury; and

(b) has a permanent impairment
rating that:

(i) is established by objective
medical findings; and

(ii) is more than zero .
. . . [Emphasis added.]

The language of these sections
is plain and clear, therefore they require no interpretation and must
be applied as written. State v. Dahlin, 289 Mont. 182, 187, 961
P.2d 1247, 1250 (1998). Under the definitional section (39-71-116(22),
MCA), a worker is not permanently partially disabled unless he or she
is able to return to work in some capacity. A permanently totally disabled
worker, who cannot return to work in any capacity, does not satisfy the
requirement, does not suffer a permanent partial disability, and is not
entitled to permanent partial disability benefits under section 39-71-703(1),
MCA.

¶7 The insurer argues that
an impairment award is nonetheless a permanent partial disability benefit
subject to section 39-71-741(2), MCA, because it is one of the components
in determining the amount of permanent partial disability benefits due
a claimant. But unless the claimant meets the definition of permanent
partial disability, he is not entitled to permanent partial disability
benefits at all. That is clearly why the legislature made a separate provision
for payment of an indemnity award to claimants who suffer a rateable impairment
but do not suffer a wage loss and who are consequently ineligible for
permanent partial disability benefits. Section 39-71-703(2), MCA (1995),
provides:

(2) When a worker receives
an impairment rating as the result of a compensable injury and has no
actual wage loss as a result of the injury, the worker is eligible for
an impairment award only.

Indemnity benefits under subsection
(2) are a distinct class of benefits payable to impaired workers who suffer
no wage loss and who are ineligible for PPD benefits. Even if the subsection
(2) benefits were considered permanent partial disability benefits, claimant
is ineligible under the subsection since he has suffered a wage loss.(2)
Therefore, I conclude that the indemnity award the insurer has agreed
to pay is not a permanent partial disability benefit and is not controlled
by section 39-71-741(2), MCA.

¶8 The inquiry, however, is
not at an end. I must still determine what authority I have, if any, to
order the payment of an undiscounted amount. The Court cannot order payment
of a lump sum of any sort -- with or without discount -- unless the lump
sum is authorized by statute. "The mere fact that the court has jurisdiction
of the subject matter of an action before it does not justify an exercise
of a power not authorized by law, or a grant of relief to a party that
the law declares shall not be granted." Selma Auto Mall II v. Appellate
Department, 44 Cal. App. 4th 1672, 1683-84, 52 Cal. Rptr. 2d 599
(Cal. App. 5th Dist. 1996).

¶9 Section 39-71-741, MCA (1995),
authorizes lump summing in three situations.(3)
The first is in connection with compromise settlements of disputed liability
claims, § 39-71-741(1), MCA; that authority is inapplicable since this
case involves accepted liability. The second is with respect to permanent
partial disability benefits, § 39-71-741(2), MCA, but, as discussed above,
that authority is inapplicable in this case. The third provision is with
respect to permanent total disability benefits. Section 39-71-741(3),
MCA, provides that up to $20,000 in permanent total disability benefits
may be converted to a lump sum, however, an impairment award is not an
enumerated benefit under permanent total disability benefit provisions,
§ 39-71-702, MCA (1995). Therefore, section 39-71-741, MCA, is inapplicable
to his lump-sum request.

¶10 Escaping the strictures
of section 39-71-741, MCA, however, does not aid claimant. While he has
cited old law cases concerning lump summing of impairment awards, the
statutes under which those cases were decided have been substantially
amended. In Franck v. National Log Construction Co., 241 Mont.
486, 787 P.2d 1238 (1990), the Court held that the 1985 version of section
39-71-741, MCA, did not authorize discounting of permanent partial disability
benefits because the discounting provision expressly applied only to permanent
total disability benefits. The legislature has since
removed that limitation and extended discounting to all lump sums awarded
under the section. In Ingraham v. Champion International, 243
Mont. 42, 47, 793 P.2d 769, 772 (1990), the Court noted that permanent
partial disability benefits available under the 1987 Act were "impairment
awards and wage supplements." Section 39-71-703, MCA, was thereafter substantially
rewritten. Moreover, while the statement that an impairment award is a
component of permanent partial disability benefits is still correct, it
does not contradict the statutory analysis set forth earlier.

¶11 In Ingraham the
Supreme Court acknowledged the legislature's constitutional power "to
fix the amounts, time and manner of payment of workers' compensation benefits
. . ." 243 Mont. at 48, 793 P.2d at 772. This Court cannot disregard amendments
enacted by the legislature subsequent to the Supreme Court cases interpreting
and applying the older provisions.

¶12 Section 39-71-741, MCA
(1995), is the only statutory authority for lump summing. In providing
for the specific circumstances in which lump sums may be granted, the
legislature has limited lump summing to those circumstances. "[A]n express
mention of a certain power or authority implies the exclusion of nondescribed
powers." State ex rel. Jones v. Giles, 168 Mont. 130, 133, 541
P.2d 355, 357 (1975). This Court cannot write in new circumstance for
lump summing. "In the construction of a statute, the office of the judge
is simply to ascertain and declare what is in terms or in substance contained
therein, not to insert what has been omitted or to omit what has been
inserted." § 1-2-101, MCA; Russette v. Chippewa Cree Housing Authority,
265 Mont. 90, 93, 874 P.2d 1217, 1219 (1994).

¶13 I therefore hold that this
Court has no statutory authority to order a lump-sum payment of an impairment
award, discounted or undiscounted, to a permanently totally disabled claimant.
Accordingly, the petition must be dismissed.

JUDGMENT

¶14 The claimant is not entitled
to a lump-sum conversion, either discounted or undiscounted, of an impairment
award and his petition is therefore dismissed with prejudice.

¶15 This JUDGMENT is certified
as final for purposes of appeal.

¶16 Any party to this dispute
may have 20 days in which to request a rehearing from this Decision and
Judgment.

39-71-741. Compromise
settlements and lump-sum payments. (1) (a) Benefits under this
chapter may be converted in whole or in part to a lump sum:

(i) if a claimant and an
insurer dispute the initial compensability of an injury; and

(ii) if the claimant and
insurer agree to a settlement.

(b) The agreement is subject
to department approval. The department may disapprove an agreement under
this section only if there is not a reasonable dispute over compensability.

(c) Upon approval, the agreement
constitutes a compromise and release settlement and may not be reopened
by the department.

(2) (a) Permanent partial
disability benefits may be converted in whole or in part to a lump-sum
payment if:

(i) an insurer has accepted
initial liability for an injury; and

(ii) the claimant and the
insurer agree to a lump-sum conversion.

(b) The total of any lump-sum
conversion in part that is awarded to a claimant prior to the claimant's
final award may not exceed the anticipated award under 39-71-703.

(c) An agreement is subject
to department approval. The department may disapprove an agreement only
if the department determines that the lump-sum conversion amount is
inadequate. If disapproved, the department shall set forth in detail
the reasons for disapproval.

(d) Upon approval, a compromise
and release settlement may not be reopened by the department.

(3) Permanent total disability
benefits may be converted in whole or in part to a lump sum. The total
of all lump-sum conversions in part that are awarded to a claimant may
not exceed $20,000. A conversion may be made only upon the written application
of the injured worker with the concurrence of the insurer. Approval
of the lump-sum payment rests in the discretion of the department. The
approval or award of a lump-sum payment by the department or court must
be the exception. It may be given only if the worker has demonstrated
financial need that:

(a) relates to:

(i) the necessities of life;

(ii) an accumulation of
debt incurred prior to the injury; or

(iii) a self-employment
venture that is considered feasible under criteria set forth by the
department; or

(b) arises subsequent to
the date of injury or arises because of reduced income as a result of
the injury.

(4) Any lump-sum conversion
of benefits under this section must be converted to present value using
the rate prescribed under subsection (5)(b).

(5) (a) An insurer may recoup
any lump-sum payment amortized at the rate established by the department,
prorated biweekly over the projected duration of the compensation period.

(b) The rate adopted by
the department must be based on the average rate for United States 10-year
treasury bills in the previous calendar year.

(c) If the projected compensation
period is the claimant's lifetime, the life expectancy must be determined
by using the most recent table of life expectancy as published by the
United States national center for health statistics.

(6) Subject to the other
provisions of this section, the department shall approve or deny in
writing compromise settlements and lump-sum payments agreed to by workers
and insurers. The department shall directly notify a claimant of a department
order approving or denying a claimant's compromise or lump-sum payment.

(7) A dispute between a
claimant and an insurer regarding the conversion of biweekly payments
into a lump-sum is considered a dispute, for which a mediator and the
workers' compensation court have jurisdiction to make a determination.
If an insurer and a claimant agree to a compromise and release settlement
or a lump-sum payment but the department disapproves the agreement,
the parties may request the workers' compensation court to review the
department's decision.